Saturday, June 10, 2006

A Little Lost Lamb

In his letter to Vice president Cheney, even as he concedes that the President may well have inherent authority under Article II of the Constitution to authorize warrantless wiretaps, Arlen Specter once again wanders far, far afield in the realm of constitutional interpretation, perhaps even as far away as the green hills of Scottish law:

It may be that the president has inherent authority under Article II to trump that statute; but the president does not have a blank check, and the determination on whether the president has such power calls for a balancing test, which requires knowing what the surveillance program constitutes. . . .

'Scuse me? How, exactly, does Specter conclude that a "balancing test" is required to decide whether the President has inherent authority under Article II to supersede FISA? Where would a balancing test even be relevant here?

Happily, Specter's "compromise" which specifies that it cannot "be construed to limit the constitutional authority of the President to gather foreign intelligence information or monitor the activities and communications of any person reasonably believed to be associated with a foreign enemy of the United States" essentially contradicts his letter's assertion.

"We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the nation's citizens," Justice Sandra Day O'Connor wrote in Hamdi et al v. Rumsfeld.

And Scalia.... "If civil rights are to be curtailed during wartime, it must be done openly and democratically, as the Constitution requires, rather than by silent erosion through an opinion of this Court."